Professor Krauss

Handout #3

Crim. Pro.BAdjudicative

Chapter 13: Pretrial Release In England, the right to pretrial freedom was governed by three sets of rules at the time of the American Revolution. The first was various statutes identifying bailable offenses and those in which low-level officials like sheriffs or justices of the peace were not allowed to grant bail. (Justices of the Court of King=s Bench had the authority to grant bail even for these Anon-bailable@ offenses.) The second was the Habeas Corpus Act, originally enacted in 1679, which provided a remedy when the judiciary attempted to circumvent the first set of laws by refusing to set and take bail for people (usually the enemies of the Crown) charged with bailable offenses. However, royal judges attempted to evade these laws by setting bail ridiculously high, which meant that their victims (usually, once again, enemies of the Crown) were left to languish in jail. The response to this practice was the Excessive Bail Clause of the English Bill of Rights of 1689, which read That excessive bail ought not to be required.@ (The English Bill of Rights was a set of limitations, agreed to by King William and Queen Mary, restricting their authority and the authority of their subordinates, including the royal judges. It was not designed to restrict the authority of Parliament, which, under English law, was considered omnipotent: the authority of Parliament, unlike our Congress, was not thought to be limited by any higher domestic law.) In the Revolutionary era, many of the new American constitutions contained provisions that tracked verbatim the words of the English Excessive Bail Clause. Several (including some including the aforementioned guarantee) also contained provisions like the one described in the Casebook as traditional@ (see note 1(b), page 951). Finally, many (including the Federal Constitution of 1787) protected the right to habeas corpus. When Congressman James Madison proposed the constitutional amendments that became the Bill of Rights, his proposal was to amend the Constitution by striking out some words and inserting others, which would have ultimately led to the publication of (what computer-literate types would call something like) version 2.1 of the Constitution. (The Articles of Confederation was version 1.0 and the unamended Constitution was version 2.0.) In this draft proposal, the Bail Clause (indeed, our entire Eighth Amendment) was supposed to be inserted in Article I, Section 9, between Clauses 3 & 4. However, for reasons having nothing to do with the amendments= substantive meaning, Congress decided to make them the free-standing constitutional appendix with which you are so familiar. The First Congress also addressed the subject of bail in the Judiciary Act of 1789. Section 33 of that law provided as follows: . . . upon all arrests in criminal cases, bail shall be admitted except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit Court, or by a Justice of the supreme Court, or a Judge of a district Court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law. And if a Person committed by a Justice of the Supreme or a Judge of a district Court, for an Offence not punishable with death, shall afterwards procure bail, and there be no Judge of the United States in the district to take the same, it may be taken by any Judge of the Supreme, or superior Court of law of such State. In any event, in England, as well as colonial America and the young Republic, bail was uniformly conditioned on the posting of bond. Thus, a poor person without a wealthier friend or patron might well have found him or herself incarcerated pending trial. Chapter 16: Grand Jury Review In old England, as well as colonial America and the states in the early Republic, taxpayers wouldn=t pay for a huge government bureaucracy of lawyers, so large staffs of public prosecutors didn=t exist. As a result, crime victims (or their representatives) commonly presented their own cases to grand juries without the assistance of a public prosecutor. Even when there was a public prosecutor, you shouldn=t assume that this person had the same relationship with a grand jury as prosecutors currently do. For one thing, grand jurors were socially prominent people. In fact, grand jurors might well be members of a higher social class than the public prosecutor. Moreover, in the only four states of whose late-eighteenth-century practice I am aware (Connecticut, Kentucky, New York, and Virginia), prosecutors were not allowed to be present when a grand jury heard evidence unless the grand jurors requested their attendance. Finally, you should know that James Madison originally tapped the Grand Jury Clause of the Fifth Amendment for insertion in a revamped Article III, ' 2 of the Constitution. As noted above, however, for reasons unrelated to their substantive meaning, the First Congress decided to recast the entire set of proposed amendments as the free-standing constitutional appendix with which you are so familiar. Chapter 18: The Location of the Prosecution


Preventive Detention Preventive Detention = pretrial detention of to protect other persons or the community @ large from criminal conduct by the Bail Reform Act of 1984 Makes ensuring the safety of any other person or the community a relevant consideration o 3142(e)Detention Hearing (DH)to be held, upon motion of attorney for gvt, where case involves violent crime, an offense where max penalty = death or life, certain serious drug offenses, or any felony by 1 with 2+ convictions of the types above o Also have detention hearing if case involves a serious risk that will flee or obstruct or attempt to obstruct justice or interfere with prospective witness or juror o 3142(f)Revocation of release require if PC likely to abide by condition, or no release condition that assures will flee or pose a danger o Appealable

(e) Detention.If, after a hearing pursuant to the provisions of sub- section (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial. In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if such judicial officer finds that o (1) the person has been convicted of a Federal offense that is de- scribed in subsection (f)(1) of this section, or of a State or local offense that would have been an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed; o (2) the offense described in paragraph (1) of this subsection was committed while the person was on release pending trial for a Federal, State, or local offense; and o (3) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1) of this subsection, whichever is later. Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), or an offense under section 924(c), 956(a), or 2332b of this title, or an offense listed in section 2332b(g)(5)(B) of title 18, the United States Code, for which the maxi- mum term of imprisonment of ten years or more is prescribed or an offense involving a minor victim under section 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title. (f) Detention hearing.The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person and the community o (1) upon motion of the attorney for the Government, in a case that involves (A) a crime of violence, or an offense listed in section 2332b(g)(5)(B) for which the maximum term of imprisonment of ten years or more is prescribed; (B) an offense for which the maximum sentence is life imprisonment or death; (C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.); or (D) any felony if the person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or o (2) upon motion of the attorney for the Government or upon the judicial officers own motion, in a case that involves (A) a serious risk that the person will flee; or (B)a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.

The hearing shall be held immediately upon the persons first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days (not including any intermediate Saturday, Sunday, or legal holiday), and a continuance on motion of the attorney for the Government may not exceed three days (not including any intermediate Saturday, Sunday, or legal holiday). During a continuance, the person shall be detained, and the judicial officer, on motion of the attorney for the Government or sua sponte, may order that, while in custody, a person who appears to be a narcotics addict receive a medical examination to determine whether such person is an addict. At the hearing, such person has the right to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed. The person shall be afforded an opportunity to testify, to present witnesses, to cross- examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence. The person may be detained pending completion of the hearing. The hearing may be reopened before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other per- son and the community. (g) Factors to be considered.The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning o (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of nineteen years or more is prescribed or involves a narcotic drug; o (2) the weight of the evidence against the person; o (3) the history and characteristics of the person, including (A) the persons character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the per- son was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and o (4) the nature and seriousness of the danger to any person or the community that would be posed by the persons release. In considering the conditions of release described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required. Why is it ok to constrain someones liberty for something they have not done yetlike if person is crazy and says he will kill someone?

Pre-trial Release Stack v. Boyle o Prosecuted under Smith Act (made it a crime to advocate or overthrow the government) o Decision of pre-trial release- Bail set at $50,000 Should they get release and if so, what conditions do they have to meet to be released? Why would you want this decision be made fairly quickly? Because these people have not been convicted of anything- their liberty is infringed if they are kept in jail for a long time- do not want to take away their liberty unnecessarily Problem is though, not enough time for lawyer to represent properly to avoid detention o If Bail is set at an amount is too high, what can the lawyers do about it? File motion to magistrate to reconsider because lawyer not around to argue at the time Prejudice Issues- once judge made up mind, hard to change mind Ackies v. Purdy Smith Act Prosecution o Prosecutors concern to ask for bail as condition of release? Want them to show up for trial- why? o Defense Counsel- not all clients wanted to be released before trial- why would they prefer to be in jail? Cannot afford it It is a place to stay for a homeless person- get 3 meals a day They are afraid they might be in danger by angry members of public or the people who committed crime with them (organized crime) Jail credit- if you think you might be convicted- can start serving the time before you are convicted o Why would they want to be release before trial? To aid in their defense

They can go back to work Want to be able to pay the mortgage and the lawyer Dont want to look and feel like shit- jury will judge you What is magistrates goal in deciding the conditions of peoples release? Balance interests of defendant and government Ensure defendant will be in court and also retain his liberty What do you need to look for? Least-restrictive means in making sure the defendant shows up- goldilocks conditions- optimal conditions of release Optimal conditions for pre-trial release for accused personrelevant factors: Community ties Less likely they will run if grounded in community Criminal History Previous failures to appear in courtbail history A lot more likely to not show up Seriousness of charged offense/Severity of Penalty Amount of evidence/ risk of conviction- if there is a 0% chance they will be convicted, less likely they will flee because will not face a penalty

$50,000

Figure out least-restrictive way to make reasonably sure accused will be at his trial Factors How severe is the penalty How substantial is the evidence Accuseds prior experience with CJS (ex. Skipped bail before or was a recidivist criminal)

Stacks concern People who could testify that he is not a communist and he did not participate in the meetings but he was there but he does not know there names, can only ID them on-site o They are not currently incarcerated so if he does not have bail he cannot recognize them What legal basis would let him out on bail? o Due Process because he is guaranteed a fair trial so he needs to be able to participate adequately to put up his defense No one else can go out and find his witnesses- Constitutional right to do this (6th amendment) (pg 206 in supplement- relevant Constitutional amendments), to obtain and call his witnesses o Not 8th amendment argument because it is not excessive for purpose of ensuring his presence What can you do to make reasonably sure he will not run away (we do not trust him)? o Release him into custody of the police to go look for criminals that can identify him when they plotted or committed this crime Will not solve this problemthey are not willing to hand themselves overwill run when they see police office Problem with sending the lawyerlawyer does not know who the people are Would a picture solve the problem? No, lawyer can make mistake and they do not trust the lawyer o What can we do using modern technology to solve the problem? Put a bracelet on him that cannot be removed Problem independent of 8th amendment

Assume at bail hearing when prosecutor has presented gvt evidence that Mr. Stack is guilty and his lawyer stands-up to offer evidence about Stacks community ties, background, lack of criminal historyjudge cuts her out because says she doesnt need to hear anything about this because there is a statute passed by legislature that says if a person is arrested in violation of Smith Act and gvt makes a strong case that they might be convicted there is no bail that can be authorized- person shall and must remain incarcerated pending their trial8th amendment problem? Noto with judge setting excessive bail o If 8th amendment cannot set bail too high Came from English Bill of Rights enacted by Parliament and protect English subjects against King and judiciary who were setting excessive bail to screw them over because they did not like them Parliament had authority to decide if crime was bailable in the first place Judge would frustrate legislative desire to have a crime bailable if he set it too highalso screws person incarcerated Judiciary Act of 1789- Excessive bail clause originally supposed to be put in Art I to limit Congresss power Unlike British Bill of Rights, excessive bail clause may have been written to limit more than the power of Congress So some crimes that are unbailable might violate 8th amendment Some early state Constitutions from revolutionary war period had language of 8th amendment + a provision saying all crimes shall be bailable except capital crimes with a lot of evidence Excessive bail clause also protects freedom of citizens (pre-trial liberty) o Include rt to bail in 8th amendment It would be redundant because of DP clause Entirely omitted "there is a right to bail In our forefathers days- legislation had untrammeled power to determine which crimes were bailable When Congress actedsaid crimes are generally bailable What does it mean to say "bail cant be too high if it does not say there is no bail HypoStack is arrested for being a part of Alkada: Concern for giving bailnot turning up for trial and committing further crimes Prosecutor would not want him to be released because of potential crimes that could be committed while he is pending trial US v. Salerno (1987) 3142(f) of BRA = procedural safeguards for arrestee: o Can Require presence of counsel @ detention hearing

Testify and present witnesses on behalf Proffer evidence o X-exam witness @ Tr = 3142(i)If judge finds he must be detained, must state finding of facts in writing 3142(f)Judge must support conclusion with clear & convincing evidence 3142(g)Relevant considerations: o Nature and seriousness of offense o Substantive of gvt evidence against arrestee o background and character o Nature and seriousness posed by release 3142(b), (c)If detention ordered, detainee entitled to expedited appellate review of detention order Facts29 count Indictment (= ) alleging various RICO violations, mail and wire fraud, extortion and criminal gambling violations and conspiracy to commit o At DH, gvt moved to have detained under 3142(e) with witness saying is danger to community b/c of conspiracy to commit Q = Does BRA violate the constitution? R = DP of 5th amendment protects people against: o 1. SDPgvt engage in conduct that shocks the conscience or interferes with rights implicit in concept of ordered liberty o 2. PDPWhen gvt action deprives 1 of life, liberty, and property that survives SDP, it must be implemented in a fair manner Pretrial detention = regulatory, penal o Detention necessarily = punishment o 1st look at legislative intent: o o If no express I Whether an alternative purpose to which restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to alt. purpose assigned to it Conc = Pretrial detention = regulatory Clear legislative I to be regulatory = potential solution to a pressing social problem o Regulatory in nature, pun before in violation of DP o BRA satisfies PDP

Reas = Gvt reg interest > individual liberty interest o Gvt interest in preventing crime by arrestees = legit and compelling BRA is narrowly tailored Only applies to certain serious offenses ( 3142(f)) o PDP satisfied Testimony, x-exam, present evidence and witnesses 3142(g), (f), (i) 3145(c) HeldBRA facially invalid under DP of 5th amendment o Non-flight related considerations are permissible

Q = Is there a right to bail in all cases? o A = No Dissentif we lock up D because we are afraid he will commit future crimes, why didnt we detain him before he was indicted? o First, he had to be arrested for something Problem with law that says we can hold you to prevent you from committing other crimes, if and only if, you arrest him for something else o This statute presumes he is guilty o It discriminates against the ones who have been arrested because they have done something as opposed to the people who havent before IrrationalEqual Protection Argumentuniverse of dangerous ppl- is it rationale to say we have concern and will only institutionalize them if they already spat on the sidewalk Sensible discrimination? No Accusationpresumed innocent so even if they committed first offenseand cant treat them as if they didpresumption of innocence (if it is an allocation of burden of proof at trialevidentiary rule, then it is not violated by this statute, but if it means you must treat person as if they are innocent This case is about equal protectionis this a rational mode to distinguish btw dangerous criminals The other is about presumption of innocence CH 14The Decision Whether to Prosecute Sec 1. The Office of Prosecutor and Nature of Decision Whether to Prosecute 1. Federal Prosecutors US AttorneysSupervised by AG

3. Local Prosecution: Urban and Large Suburban office Assignment system: o 1. VerticalSpecific case flow is assigned to particular ctroom or judge

Assistant --assigned to that ctroom or judge o 2. HorizontalRevolves around each process stepseparate assistants can be assigned to intake, PH, etc. New for each step
must initially make 5 decisions about a case: 1. Is there enough admissible evidence to prove that suspected person committed 1 or more crimes 2. If not, if suspect is a bad-guy, what should prosecutor do? 3. If there is enough admissible evidence, is there still a good reason NOT to bring criminal charges against him? 4. If feels that a suspect is provably guilty but should not be subject to criminal prosecution, should prosecution be contingent upon suspect taking part in a diversion program? 5. If feels has committed 1 or more crimes, which charges should be brought? o Factors: Strength of case Info about offender (i.e. community facilities) Job of Prosecutor = seek justice ABA Standards (pg 965) 3-3.9 Discretion in the Charging Decision. o (a) Prosecutor should not bring charges if it is not supported without probable cause o (b) Absence of any significant evidence 3-3.8 Discretion as to noncriminal disposition 3-2.5 handbook; policy guidelines and procedure Distinct probability of G in law that must exist for to offense 7. : Diversion

Diversion = the channeling of criminal into program that may involve jail o Pauses Prosecution, resumes if meet program obligations 8. : Selection of the Once is personally convinced of G of accused, he must determine the Sec 2. Some views on discretion in criminal process and discretion Notes Victims rights statute (18 USCA 3771(a)(5))crime V is granted a reasonable rt to confer with atty for gvt in the case o impair discretion(d)(6)

JR of discretion Sec 3. Challenging the Discretion I. Decision to prosecute Inmates of Attica v. Rockefeller Alleged misconduct (beaten) my prison guardsclaimed they were beaten for no reason and state prosecutor did nothing about it (did not bring charges) Alleged human rights violation Why should prosecutor be obligated to prosecute because a private citizen said so? o Why shouldnt prosecutor be obligated to press charges? Accused did nothing wrong Not enough evidence Limited Resourcescannot prosecute everyone who commits a crime At some point equal protection becomes a problem Degree of scrutiny Rationally related to legitimate state interest? How strong should evidence have to be in order to bring criminal charges? o If you think there is probable cause to bring charges but not enough evidence for a jury to convict, what should you do?

Inmate beaters Prosecute all blacks who beat whites o No separation of powers problem ordering executive to bring these lawsuits o Does not deprive them of discretion Prosecute no whites who beat blacks o Why separation of powers problem ordering executive to bring these lawsuits? Requiring him to do all or none Deprives them of discretion (problem of arbitrariness) Serious doubts as to judicial capacity to review Intent to discriminateDiscriminative effect Strict Scrutinydistinction necessary to achieve compelling state interest Why doesnt granting motion to dismiss lawsuit executive filed violate separation of powers? Executive doesnt have the authority, cannot intrude if you tell them they cannot do something they cannot do While prosecutors should not have discretion to discriminate on grounds of race while it is not justified, should have discretion of how in a racially-blind way to proceed Non-separation of powers problemforcing them to prosecute people they do not want to They may do a bad job because they do not want to do it BUTprosecutor is not going to want to piss off the judge because he will have to try other cases in front of the same judge Assuming there is an EP violation here and granting motion to dismiss is constitutional, is it an appropriate remedy to grant? Noshould punish prosecutor and not the criminal Law that makes it illegal for a guard to hit an inmate If we accept prosecutor at his word, the real crime we are charging these people is for black people hitting white people which violates EP Armstrongquestion is open-ended New Facts--only prosecute people who vote for other political party in last election who meet inmates Treat similarly situated people differently?

o Intent to discriminate? yes o Discriminatory effect? Yes EP violation = treating people differently Strict scrutiny doesnt apply because they are not a protective class o Any exercise of a constitutional right gets strict scrutiny Only prosecuting suspected drug dealers: Rational basis testwhether it is rationally related to a legit state interest Not rationally connected to stopping beatings N&Q 1. US v. Cox F = US Atty to sign (instructed by AG) for federal GJ 2 blacks with perjury who testified in civil rts actions brought by US against a county voting registrar o US Atty held in contempt

3 Judges US Atty obligated to prepare or sign o Discretionary power of Attymay depend on policy matters separate from PC o Part of executive branch o Since he have to sign form, shouldnt have to prepare it 3 judges obligated to do both o Enforce Separation of powers (SOP) by having Atty prepare it 1 judge must prepare but sign o GJ should be entitled to legal assistance of atty so would reflect conclusion of GJ and difference in view btw GJ and US Atty N&Q 1. The ct as a check on decision to prosecute Man J placed some control after initial steps towards prosecution have been taken State ex rel. v. Connors

2 football players allegedly assaulted dancer in dressing room at a night club

2. GJ as a Check Most J permit GJ to initiate prosecution by even though opposes prosecution 3. State AG as a Check CL AG has wide powers of supervision over all criminal prosecution o Can initiate & prosecution @ his discretion Johnson v. Pataki o Governor directed AG to assume control of prosecution b/c was going to seek the death penalty o Governor allowed to do this ( subject to JR) b/c his job is to make sure statutes are uniformly applied throughout the state 5. Substance of special Morrison v. Olson o Upheld apt of IC

, after , issue criminal complaint because think he could prove case beyond a reasonable doubt o Writ of prohibition statute violates SOP and is a substantial encroachment on delegated power Can prohibit from dismissing initiated claim to prevent harassment and is similar to jeopardy Jeopardy Protect against harassment

AG still had several means of control including removal for good cause II. The Decision to Prosecute US v. Armstrong F = for conspiring to possess with I to distribute crack o 3 confidential informants bought crack from armed o motion for or 4 dismissal of --said they were selected for federal prosecution b/c they were black Evidence = similar cases all had black o C of A affirmed grant of dismissal

Selective-Prosecution Claim = assertion that brought for reasons forbidden by (Constitution) Presumption of regularity supports decision and in absence of clear and convincing evidence to the contrary, cts presume they have properly discharged duty 1 restraint = EP clause of 5th amendment o Claimant must show Federal policy had a discriminatory effect and it was motivated by a discriminatory purpose

Show Similarly-situated ppl of a diff race prosecuted PC = Not enough evidence of discriminatory Intent o Need credible evidence to survive governments motionneed some evidence o D could not get more evidence, prosecutor had the evidence

H = must show policy had discriminatory effect and prupose Why should we presume prosecutors should act legally? o They are members of the bar, take oath to act lawfully and follow the constitution No reason to assume Armstrong is a victim of racial discrimination Assume gvt prosecutes crack dealers more generally Armstrong now claims he has a problem because he said he was targeted for prosecution and arrest because he did not let the Presidents daughter cut in line at the grocery store o Factual distinctiononly concerned about how the gvt acted in my case o We would have to litigate every single case to see if we did something to defendant that was bad during the prosecutorial decision-making o Singling people out is still discrimination under EP Assume Armstrong filed a civil rts tort suit against the gvt under 83 for damages for violating civil rts under EPProsecutor saysif you drop your suit I will drop my criminal caseArmstrong says no and files for motion to dismiss criminal case Could there be a good reason for the prosecutor to say we will only dismiss our case if you dismiss ours? o Yesoverall expenditures are high Bad reason? o They know what they did was wrong and we know we will lose According to logic of Armstrong, how should court approach this motion to dismiss? o If he has some evidence he will survive motion

o If he has clear and convincing evidence he will win motion o Does not have clear and convincing evidence so prosecutor would win Why should we treat this complaint different nt then Armstrongs real case? o Settlement offer makes it bias the other way Armstrong comes back to country after central American drug buyprosecuted under non-used 200 year-old law Complaint under DPits not fairdoes he have no notice that it is against the law? o Noit is written in the statute booksignorance of the law is no excuse o Unused statutecan be because we do not like it or there were more important things to do, maybe we like have the statute and not enforcing it Armstrong convicted of drug charges, appeal saying wrong jury instructions, wins appealreverse and remands for new trial Prosecutor substitutes a more significant drug charge for more significant drug charge Violates DP because you are punishing someone for appealing it is unfair T.C. in Armstrong (on motion to dismiss)--burden of producing evidence is on the Burden of persuasion is on need clear and convincing evidence to have motion granted Should we follow the Armstrong model that should have to produce proof or the Rummary model that prosecution does? Rummary If prosecutor can bring forth good reason for bringing a then he can go ahead and add a more serious What problem is this for the defense? o Could all be pretextjudge could shift through the difference o Cant anticipate when prosecution is going to stop adding s

Different opinion from original different assessment of case o Most egregious New evidence o New evidence could be insignificant

 New Factsperson died Armstrong for selling drugs, files request for jury, files new containing murder as well as drug Armstrong files motion to dismiss More like original Armstrong case or like adding on a more serious ? Armstrong, bad reason for increasing that Armstrong requested a jury trial (exercise of right) Unfair to raise because someone exercised right Jury trial v. bench trial o Jury trial is more work and preparation than a bench trial for and defense N&Q 1. Discriminatory Purpose (b) Wayte claimed denial of EP b/c of selective enforcement against vocal nonregistered (4 draft) who were exercising their 1st amendment rights SC agree gvt treated all reported nonregistered ppl similar show that gvt I discriminatory effect o Discriminatory purpose implies > than I as awareness of consequences

Decision maker selected or reaffirmed a course of action @ least in part b/c of its adverse effects on an identifiable group (c) McCleskey v. Kemp Black -- white V sentenced to Claimed racial discrimination (violation of EP) Evidence = statistics that sought penalty more with black s & white V than with white s white V or white s & black V H = statistics were insufficient o must prove decision-makers in his case acted with discriminatory purpose Decision to prosecute and what to are necessarily individual and involve infinite factual variations compare decision of Das across the state Discretion to choose penalty benefits

2. The arbitrary classification requirement (c) Ppl v. Mantel Test = whether a particular classification bears a rational relation to the broad purpose of criminal law and it is reasonably related to law enforcement objective 3. Discriminatory Effects (a) Ppl v. Walker claimed violated of EPprosecution for violation of multiple dwelling laws Ct ordered re give fair opportunity to show such I to discriminate (d) US v. Aguilar Who is and who is similarly situated? s = members of sanctuary mvmt o Organized smugglers operation for economic gain politically motivated Focus on agriculture workers is wrong group 7. Selective Reversal of Prior non-enforcement decisions Dixon v. D.C. o Black stopped by 2 white PO for traffic violations charged or ticketed Filed complaint about PO conduct Agreement to prosecute and to pursue claim filed formal complaint o Violation of 1st amendment to prosecute and then change mind b/c filed complaint suppress complaints by making these type of agreements 8. DesUetude (a) US v. Elliot

with conspiracy to destroy property in country where US at peace with Purpose of statute = to punish acts of interference with foreign relations of US is still important H = non-use alone abrogate statute (c) Abrogation of enacted law by desuetude ~ DP Fair-notice of fair-warning clause III. The Diversion Decision 2. (b) US v. Smith w/ weed possession o Moved to dismisscriminal penalty = cruel and unusual o Sought Diversion

denied b/c chose to litigate part of his case This is -- can waive rt to IV. Selection of the 1. Us. v. Batchelder Convicted felon who received firearm- clearly violated law Law was non-discriminatorily enforced 2 statutes that provided for different punishments (overlapping statutes) Why didnt have right to lesser sentence? o The legislature gave the the choice by passing 2 different similar laws, the only real reason for them to do that was to allow to exercise discretion o It is the legislatures power to choose the sentencethat is why they chose to pass redundant laws

H = statute void for vagueness o 2 provisions unambiguously specify the activity proscribed and penalty available upon conviction 5. Blackledge v. Perry Misdemeanor assaultConvicted Exercised rt to obtain de novo in Superior ct

Statute says slate is wiped clean o then with Felony assault w/ w/ I to kill o Plead G Ct said it violated DP Q = Are opportunities for vindictiveness here such as to impel conc that DP requires a rule like that of Pearce? o A = Yes o must be free od apprehension of a retaliatory motivation on part of sentencing judge o Person can pursue statutory rt to de novo without fear of being w/ offense w/ much > penalty 6. US v. Goodwin w/ several mis and petty offenses o Wanted jury so case transferred to D.C. US Atty got Felony s convicted moved to set aside claiming vindictiveness o SC agree

Timing of action shows presumption of vindictiveness warranted Timing = pre decision to get by jury

CH 15Preliminary Hearing (PH) PH = adversary hearing @ which the magistrate determines whether evidence presented by , as challenged by defense, is sufficient to send prosecution to next step in process Only available in cases o Next step = GJ (whether to ) or filing of information Sec 1. rt to a PH What is the value of GJ? Must have PH within 10 days after 1st appearance if defendant remains in custody

o Want it to be relatively quickly, especially if person shouldnt have been charged o Cant use the info from PH at trial Can prosecutor get Preliminary trial cancelled? Why defense would want a PH o If there is not enough evidence to charge defendant, can get him off o Someone who can testify on defendant's behalf that will be unavailable soon If you want a PH you do not automatically get 1 o GJ can come out with an indictment before PH and that serves the same function o Prosecutor gets to decide When would you expect prosecutor to hold PH? o (prosecutor has the choice) o If it is in the prosecutor's best interest

1. Independent screening and the Federal Hurtado v. CA st 1 case considering whether Federal requires a pre screening of proposed by a neutral agency to ensure there is evidential support for argued 14th amendment DP5th amend requires that prosecution be instituted only by GJ H = Ct rejected this, fundamental rt Gerstein v. Pugh 4th amend requires PCcan be made ex parte Reaffirmed Lem Woon judicial hearing a prerequisite to prosecution by info o Accused entitled to oversight or review of a decision to prosecute 2. Independent Screening Alternative Vast majority of J requires an independent review by GJ (GJ = screeners) or PH bindover (magistrate = screener) 3rd type = direct filing JR of decision to

3. PH in Federal System Statute on rt to a PH = Federal Magistrate Act, 18 USC 3060: o Provides for PH in all cases (unless waived) w/I a reasonable time following initial appearance, and no later than: (1) 10th day after 1st appearance (if remains in custody) OR (3) 20th day after if in custody o No Preliminary examination shall be required for arrested person if @ time before date fixed for PH, is returned against 6. Choice GJ available w/o delayusually bypass PH, factors that may cause to delay GJ to have PH 1st: o (1) Putting a key prosecution witness to the test of testifying in public where there is some doubt as to whether witness is willing to testify o (2) Promoting V interest I pursuing matter by presenting it in a public forum o (3) Get defenses perspective of events involved when it clear o (4) Another ID of suspect by having witness make ID @ hearing o (5) Promote public confidence in a sensitive decision 7. EP EP challenges to bypass have generally failed Dominant view = selectivity in exercise of bypass tactic only violates EP where can show discriminatory purpose o Discussion to bypass must be motivated by race, religion, or some similar arbitrary classification Sec 2. Defense Benefits & Strategies 1. Influence of Coleman Coleman v. AL th H = 6 amend rts of indigent were violated by states failure to appt counsel for PH o Although state has obligation to provide PH, once it does, 6th amend rt to counsel applies

Critical-stage test = whether assistance of counsel @ PH was necessary to preserve s basic rt to a fair as affected by his rt meaningfully to x-exam witness against him and to have effective assistance of counsel @ itself 2. Evidence Sufficiency Challenges

Defense usually make significant effort to challenge evidence besides making a pro forma motion to dismiss 4. Laying groundwork 4 future impeachment Get inconsistencies of witness stm 4 x-exam @ regular 5. Preserving favorable test If wit is unavailable to testify @ , PH testimony can be used under prior testimony exception to hearsay If defense or prosecution has a substantial basis to believe a wit will be unavailable @ , testimony can be preserved through a deposition designed to perpetuate testimony B. Incidental Benefits and Appellate Review 1. Post-conviction review of defense challenges Defense challenges to rulings in PH o (1) Magistrate ruling denied his rt to PH o (2) Magistrate erred in finding evidence sufficient to meet J bindover std o (3) Magistrate erred in a procedural ruling @ PH Challenges TC o If denied, cannot seek review appellate review until after conviction 2. Coleman Approach Test = whether denial of counsel @ PH was harmless error CRIMPROC 14.4(a)Violation of rt to counsel @ PH = reversible error only if defense can pt to specific aspects of where was adversely impacted by having lacked counsel @ PH 3. Per Se Harmless Approach Most state cts any error besides not having counsel at PH, is automatically harmless upon conviction 4. J defect Approach Info states Automatic reversal required where magistrates error denied rt to hearing or held a hearing, but issued a bindover on insufficient evidence 5. Post- Review J issued rt after PH, challenge to magistrate ruling is considered by TC in post- setting Purpose of PH = bindover determination

o GJ is free to even if magistrate shouldve decided against bindover

itself establishes PC Green allegedly sold marijuana to porter Can Fed prosecutor right info charging Green with this felony and go to trial without any neutral person determining there is probable cause for this charge? o No because of GJ requirement in ConstitutionGJ would have to find there is probable cause to go forward and return an indictment 5th amendment o What if charge of drug possession was a misdemeanor? Requirement of GJ indictment does not apply to misdemeanor (it only applies to felonies) o What if drug charge was a violation of state law, can state prosecutor initiate a felony drug charge in state court by information? Yes GJ clause of 5th amendmentSC held it does not apply to state (either does 7th amendment right to civil juries) Constitutional right to a bind over? o Where person has been incarcerated? If it can be done ex parte (Defendant doesnt know about it), how can it come about, who would request it? The prosecutor What formal device would prosecutor employ to request it? o A motion Judge asked to determine what? There is PC to determine whether the case should move further o If Defendant has been freed by his own promise, now does constitution guarantee right to independent judicial review? Right to counsel whenever liberty is at issue (not restrained if you have unconditional pretrial release) No o Why do you not have constitutional right to a preliminary trial to make sure the charges are legit? (So you cannot challenge until after you are formally charged)

Framers choose not to explicitly create this right o No constitutional right to JR outside of felony prosecutions o Most information states allow JR even though it is not required by the constitution Sec 3. The Bindover Determination State v. Clark charged with crime of forgery o took a recently stolen check to the bank hours after checks were reported stolen and attempted to cash it Banker said approval was needed, Clark left bank abandoning check boundover by magistrate, but quashed in DC o State failed to meet evidence burden @ PH

Q = Did DC judge error err in quashing magistrate findings that there was PC to bind ? o To bind , state must show PC @ PH by presenting sufficient evidence to establish that the crime has been committed and has committed it o Magistrate must view all evidence in light most favorable to Q = what quantum of evidence is sufficient to support PC @ PH? o Less than evidence necessary to survive directed motion o Reasonable Belief Std H = must produce believable evidence of all elements of crime o Evidence need to be capable of finding G BRD (beyond reasonable doubt) PC = Evidence in light most favorable to = sufficient to meet reasonable belief std o tried to cash forged checks hours after they were reported stolen

abandoned checks when told there was a problem o Reasonable belief that did this with purpose and K to defraud?
Yes = reasonable inference If this was all the evidence that prosecution presented at trial, could a reasonable jury find that this constitute he was guilty beyond a reasonable doubt?

o o

o
o o

No But can bring charges because you have more evidencewhy didnt he present it at preliminary hearing? Discoverydont want to present all evidence at prelim hearing because defendant can fabricate evidence What is defenses problem with this? Jurors may think you are guilty and convict you You might plea something because you are afraid you would be bound over If you were being restrained--you might want to get charge cleared now to get rights back thinks PH purpose should = to determine if there is enough evidence for the jury to convict So if purpose of PH is not to convict, what is the purpose?

o N&Q 4. Forward-Looking Perspective Bindover should look @ likelihood gvt will be able to develop further evidence to establish e @ If is bound over for , the next thing that happens is o If he is convicted and appeals and says there wasnt enough evidence to bind him over in the first placeharmless error because there was enough evidence to convict him? No because makes PH useless Some J maintain that this is a J prereqcannot try someone without valid bind over or GJ Other J say this is overly formalistic 5. Magistrate has authority to judge credibility of witnesses (appellate decision)

thinks PH purpose = is it reasonable to think the did it? (very similar to rational basis review) Should GJ have to decide by same standard that judge would have to use in a PH? Yes Consistency Inconsistency argument? Hold judge to higher standard Judge works for the government so treat jury of your peers differentlyrisk judge would unduly be inclined to favor the gvt What should term PC be interpreted to mean in this context?

6. States are divided if to allow an appeal of rt to next higher ct to contest dismissal @ PH If appeal available, can apply for extraordinary writ if magistrate ruling = gross abuse of authority If PH dismissal is prior to attachment of jeopardy, can reinstitute proceedings o Can present to GJ o Most statescan re-file with same evidence 7. states If waive rt to be prosecuted by , bindover present evidence to GJ Info states, Bindover filing of s by info Reason to suspect (rational basis) Enough to convict State v. Clark o Arresting officer o Teller o Handwriting analysis? Objectioncannot use discovery during PH Dont let present own witness at PH because if there is a contradiction you are taking away the job of the jury at to determine conclusions of fact Jurisdictions dont agree about these rules Problem with letting the present an affirmative defense at the PH is that the may not have enough evidence to rebut it because the hasnt been charged yet so he hasnt pled yet o As a practical matter, has no way of knowing that this is going to be argued

Main Question--How well do PH serve their intended purpose?

Sec 4. PH Procedures A. Application of Rules of Evidence 2. Higher group of inadmissible evidence used @ PH

3. Majority recognized exclusionary rule objection @ PH B. Rt of X-exam 1. 6th amend Confrontation Clause (CC) apply to PH In all J, local law grants accused rt to X-exam adverse wit who testifies @ PH o > restricted than @ extend beyond scope of X-exam Only show bias, prejudice, motive if it relates to PC 2. Magistrate has authority to cut-off X-exam which appears to be aimed primarily @ obtaining (a) Wilson v. State Vs wife ID @ PH as man who shot her husband o X her on her description to PO Sometimes attack on credibility can be , but when it goes to plausibility of description of 3. Myers v. Commonwealth Restricts magistrates authority to bar further X-exam to limit presentation of defense testimony in light of a state showing sufficient to justify a bindover F = PH on rape o 1 complainant testified o questioned about belief in witchcraft o Magistrate terminated PH Primary function of PC hearing = screen out errors or improper prosecutions o must have meaningful opportunity to challenge credibility of wit and raise affirmative defense PC = should be able to present evidence of consensual sex, otherwise magistrate consider all of the evidence 4. PH test traditionally has been admitted @ as substantive evidence under prior testimony exception to hearsay rule, where wit currently unavailable to testify

CA v. Green o PH that different from actual Wit under oath represented by counsel had opp to X-exam Before judicial tribunal o Ct denied challenge to allowing PH testimony in as prior exception to H rule when wit unavailable to testify @ C. rt to present wit 1. Most J recognize a general rt of subpoena authority to present wit @ PH Defense wit be presented unless case is quite exceptional Defense counsel primary objective = obtain and establish basis for impeachment opp 4 wit @ 2. Subject to limits of rt to X-exam wit Desper v State o 1 prosecution wit = stoke clearkdescribed being robbed @ store, ID and said he made ID before to PO o wanted to call Detective as wit objectedsustainedreversed o made showing that testimony was relevant to PC 4. State v. Mitchell duty under Brady doctrine to disclose exculpatory evidence w/I its control, extends to PH as well as

Ch 16- Grand Jury Review (GJ) Sec 1. On Requiring GJ review A. Prosecution by : Federal and State Requirements 5th amendensures that a federal for a federal offense be brought w/o granting accused protection of review and acceptance of by GJ (through )

o Federal and 1/3 of states require indictment for all felonies Hurtado v. CA o Ct sustained 1st degree conviction where prosecution intitated by info

still got DP o H = States do need to prosecute by

B. Use of GJ Cts held that 5th amend preclude acceptance of a s waiver o If accepted, can by C. The Effectiveness Debate Not used to screen misdemeanors generally Not all GJ are structurally and procedurally alike Value is debated 1. Challenges to GJ composition 2. Challenges to evidence before GJ 3. Prosecutorial or GJ misconduct Try to asses value courts place on GJ screening function and how this shapes the approach of those 3 questions 3 potential mechanisms to decide who gets with a crime: o 1. Let decide by filing by information o 2. Let magistrate decide in PH by bindover o 3. Let GJ decide by guarantees that In cases, it wont go to unless there is by GJ If the reason to prefer a GJ is it is more likely to make impartial decisions and understand us, what will a GJ need to fulfill its job? o Need random selection of people in the community Sec 2. Challenges to GJ Composition

1. Majority of states require random selection from 1 or more representative source lists GJ sits 4 > time than petit jury o required procedure for counsel to follow o voir dire, preemptory challenges o Once GJ passes stage of hardship excuses, they are seated automaticallytheir capacity to fairly judge case is challenged only after GJ selection is subject to EP clause o Purposeful Discrimination o If prima facie case of purposeful discrimination can be established, shifts burden to state to show discriminatory impact was purposeful 3. Petit jury SC held6th amend requires jury to be drawn from a fair X-section of community certain if this applies to GJ selection too 4. GJ foreperson is commonly appt by ct Hobby v. US o claimed that judge discriminated against blacks and women in selection of GJ foreman = white male, EP claims only available to of class discriminated against Made DP claim o H = Discrimination require dismissal of unless it adversely affected DP interest raised by Why? Foreman selected from randomly-selected GJ pool and tasks = ministerial only 5. 5th amend expressly require GJ to be impartial GJ = purely accusatory bodyjust says if should be brought to To support dismissal, must show actual bias on part of seated juror 7. Rose v. Mitchell (automatic reversal rule) Criminal rt to EP is denied when he is by a GJ from which members of a racial group purposefully have been excluded o matter if was actually prejudiced by discriminationstill reverse conviction

8. Vasquez v. Hillery Rose rule still applies even if EP claim comes years after conviction o Reverse conviction Sec 3. Challenges to the Evidence before GJ Costello v. US Q = May a be required to stand and a conviction be sustained where only H evidence was presented to GJ? F = Mr. Costello objectionGJ that me heard evidence obtained in violation of my rights under the 4th amendment, and unlike hearsay, will never be inadmissible at trial No provision says what kind of evidence GJ can use claim4th amendment o Hearsay claim is not making a 4th amendment argument

Not enough evidence to constitute PC returned by a legally and unbiased GJ = dictum o GJ if valid on its face is enough to call 4 of on the meritsall that is required by the 5th amendment Public Policy Reason = delay and cost o Too much delay if s are allowed to be challenged based on having incomplete or inadequate evidence misconductnot telling jury what elements are SC did not consider this case If GJ commits perjury, it is duty to do something about it What if lied to GJ about elements of crime, whose job is it to correct it? o The judge What is knows that there is 100% lies used to obtain objection? o It should be thrown out Notes on the Rationale and Scope of Costello 5. US Atty Manual

H can be used in GJ if it affords jurors a substantial basis 4 voting upon an Evidence un obtained present to GJ for use against a person whose rts clearly have been violated which personally K was obtained as a direct result of the violation Sec 4. Misconduct Challenges US v. Williams Q = Can a DC dismiss an otherwise valid b/c gvt failed to disclose to GJ substantial exculpatory evidence in its possession? F = on 7 counts of K making a false stm or report for purposes of influencing the action of a federally insured financial institute o DC granted motion for disclosure of all exculpatory portions of GJ transcripts o wanted dismissed for failure to present substantive exculp evidence that contradicted evidence he attempted to mislead bank Dismissed w/o prejudice C of A affirmed No supervisory judicial authority exists of GJ b/c it is an institution separate from ct o GJ = buffer or referee btw the ppl and gvt GJ remains free to pursue its unhindered by external influence or supervision so long as it trench upon legitimate rts of any wit called b4 it 5th amend guarantee presupposes an body acting independently of either or judge H = violation of clear rules could lead to a dismissal o Perjury by or agent of Does it hold that ethically it is ok not to call the other witnesses who undermine their testimony? o Doesnt sayonly says what s legal obligations are Who decided has a legal duty not to use perjured evidence? o Congress o Necessary and Proper Clause gives Congress the power to do this What authority does the court have to mandate dismissal of that Congress did not mandate? What does it mean to say that the court has judicial power? o Decide what peoples rights are and whose rights are violated (determining rights)

o If they are violated, what remedy should judge give?

Matter of judical power to determine what remedy to grant as long as congress has not explicitly disallowed judge to grant the particular remedy Misconduct Challenges in State Cts 1. Most states recognize diff types of misconduct, just violations 3. Most cts say must have I to deceive for there to be misconduct 5. ABA std for function 3-3.5: make stm or arguments in an effort to influence GJ action in a manner which would be impermissible @ before a petit jury Obligation on to inform GJ when his opinion is that evidence warrant (3.5(a)-3-3.6(c)) limits apply to comments that were aimed @ purpose other than convincing GJ to The Prejudice Requirement 1. A finding of misconduct ordinarily will itself be sufficient to justify dismissal Most J require showing of prejudicial impact 2. Bank of Nova Scotia v. US SC stated std for dismissals issued b4 conviction TC dismissed due to misconduct o Reversedneed prejudicial impact o

H = DC dismiss for error in GJ procedure unless error prejudiced o Federal ct can exercise supervisory authority by making procedural rules specifically required by or Congress o Fed ct invoke supervisory authority to circumvent harmless error inquiry required by FRCrimP o Dismissal of is only appropriate if it is established that the violation substantially influence GJ decision to or there is grave doubt that decision to was free from substantial influence of such violation PC = enough evidence to show misconduct affected GJ independence o Isolated episodes that spanned 20-month GJ 4. Per Se Prejudice Structural protections, compromised as to render proceeding fundamentally unfair i.e. racial or gender discrimination in selection of GJ 5. US v. Mechanik

During X-exam, learned that 2 gvt agents appeared before GJ and testified in tandumviolation of R. 6(d) o Judge took motion under advisement until after o Ruled it was a violation but that it was harmless b/c impact on decision to Majority R. 6(d) violation should be evaluated in light of supervening jury V o Purpose of rule = protects from defending a for which there is PC to believe he is e

CH 17The ing Instrument Sec 1. Pleading Basics A. Liberalization of Pleading Requirements CLFormalistic and detailed o Provided notice to accused

Fed R. 7(c)-- or info shall be a plain, concise, and definite written stm of essential facts constituting offense o Establishes a single std o Requires do no more than set forth, in factual terms, of offense sought to be Fed R. 12(b)-- and objections based on or info other than it fails to show J in ct or to an offense may be raised only by motion b4 o Failure to object = waiver of objection B. Functions of Modern Pleading Requirements 5 diff functions: o 1. Implementing DJ guarantee o 2. Providing noticerequires pleading fairly inform of s against him o 6th amend rt to be informed of nature and cause of accusation 3. Implementing JR Pleading should be sufficient to inform TV of facts alleged, so that it may decide whether they are sufficient in law to support a conviction CL ~ demurrer to pleading instrument Today ~ motion to dismiss ing instrument for failure to an offense

4. Provide a J grounding fir the judgment CL view of ing instrument as providing a formal basis for judgmentneed everything for a complete case on paper Today TV transcript sets forth grounding of conviction 5. Implementing GJ guarantee

Jpleading also ensures stays w/I confines of offense by GJ GJ J Pleading requirement necessary to implement that guarantee are also given statusJ prerequisite C. Basic Std

4 substantive std: o 1. Essential s requirementto an offense, pleading must allege the presence of each of the basic s needed to establish offensetypically means REA*; prohibits conduct, requires harm R. 7(c) std-- will be set forth in factual terms where lends itself to such description Only requires that must initially establish to makes its case Apprendi-type (pg 1087-88) States bound by 5th amend GJ clause ( need Apprendi-type ) If TC finds or info allege an essential , must dismiss pleading be cured by amendment o 2. Factual specificityneed enough to enable to defend properly Amount needed varies by case Relevant factors: Nature of offense Likely significance of particular factual variations in determining liability Ease of to ID a particular circumstance w/o lengthy allegation Availability of alt. procedure for obtaining info Must be sufficiently particular to enable accused to prepare a proper defense Sustain objection = dismissal

o 3. Duplicity--ing of 1+ offenses in a single count

Valid objection require dismissal, gvt must chose offense on which to proceed

o 4. MultiplicityA multiplicitous a single offense in several counts require dismissal, must elect 1 count
Sec 2. Applying the Basic Pleading Std Russell v US F = for contempt of Congressrefusing to answer questions of subcommittee o gave all the particulars except subject matter on which they were being interrogated o with refusing to answer relevant questions

Congress had the authority to pass this criminal statute, and the cts have a corresponding duty to safeguard the rights of those accused The law = Under Sinclair, criminality ONLY o 1. If the Q he refuses to answer pertained to a subject then underby the body that summoned him AND o 2. Burden is on state to prove that the Q was pertinent or relevant o 3. Q of Pertinence = matter of law Q = was this a pertinent Q? H = must state the subject of the inquiry as found dby the GJ o Where e depends so crucially upon a specific ID of fact, must do more than repeat language of criminal statute Rationale = He has a right to notice of the s against him o If the was brought by information, could ask the for a bill of particulars

This doesnt work in a GJ b/c the is not authorized as their spokesperson o Why didnt the PH clarify all these matters? There wasnt one b/c the GJ moots the hearing
What does he gain by filing a motion to dismiss? It looks like he is looking for specificity but its hard to know First step is ascertain what the subject is

However, before that, look at what is required in --errors that affect substantial rights shall be disregarded Two of the basic protections have been emphasized by the ct: o He knows what the crime is (contempt of congress/failure to answer Qs) o He needs the facts which establish the s

Look at p. 1083-shooting FBI, in the performance of his official duties This, like Russells , sets forth a conclusion Why is this okay? How do we know that the officer was working? How did Congress get the authority to pass FRCP? Necessary and Proper Clause Art III The form itself and the fact that Congress created it says that this passes muster o 1. Does it contain the s of the offense intended to be ? o 2. If other proceedings are taken against him does it show that he was not previously acquitted or convicted of such?

This one was met, first is the issue o The failed to identify the of what he must be prepared to meet o Since Pertinence defines criminality, he needs to know what the Q was pertinent to Generic terms (un-american propaganda) is not enough to survive 6th amend DP o This fails b/c it does not adequately inform him of the s against him
Was it communist activity in the media? Or in general?

o Some argue that a bill of particulars can cure a bad , but it cannot. Is this a R. 7(c) problem? Or is it a right to Know or DP problem? So if Russells case is a DP violation 6th amendwhy isnt the FBI one? All of the s are there

Assume says, feloniously shot John Doe Why is this okay? Not ok? There is a distinction btw failure to tell me the crime and failure to tell me the evidence you are going to rely on Can this be a harmless error? o He never said he was harmed, ct should forget about it o But what else could have been prejudiced him? The GJ > you are undermining him Otherwise, this is a J defectno way this can be remedied in ct R. 12(b)(3)(b)failure to allege a crime Harlan D: This is a throwback to when we required every detail The Debrow test is not whether it could have been more, clear but was it clear enough? Majority says holding is needed to prevent gvt from switching subjects on appeal Furthermore, the pertinence decision is one to be made at , not by GJ Also, we are in effect saying here that cannot introduce any argument or theories at that she did not introduce at GJ Notes on Russell May have established a std for required specificity In Valentine 1095, there were 20 identically worded counts of child rape o Did not change locations, dates, times of day o Ct said this did not satisfy notice or sufficient specificity to allow him to formulate a defense (i.e. alibis)

Statesin general where the crime encompasses more factual variations, greater specificity o ex of crime = false pretenses, need to know which statements were alleged to be false Bill Of Particulars (BOP) = function of this is to provide w/ details of against him if this is necessary to defense preparation and avoiudance of prejudicial surprises @

o cure invalid o Relationship of this to is not always clear, but short form s may generate an automatic BOP
Why would leave details out? o Dont want to give case away o Also dont want to risk reversal after appeal if case takes on a diff scope and you vary too widely from it at If Russell is saying a need to know the details, so it is not a R. 12(b)(3)(b) problem o If doesnt say who I killed or when I killed is that okay? Russell does not tell us if the failed under the or the fed rules or what? Maybe the ct just did not like the anti-communist committee J defect can be raised at any timeneed not be pre--without the law saying harmless error or you forfeited it Why would I wait and go thru and raise this after conviction? o I see their whole case

If I say way too much in my s, I have may have a variance problem if I stray too far from my specificity in the But we should allow some room for variance

3/2/11 When offenses can be included within same instrument Cross v. US o Robbery of church rectory and robbery of tourists home o F.R.Crim.P 8(a)Similar offenses o Pick jury, witnesses that need to be same in each casecharacter witnesses o Source of prejudice 1. jury might use evidence of 1 of the crimes charged and make an inference that he has a sort of criminal disposition (cross-referencing) 2. Cumulative evidence

3. Confusion 4. 5th amendmentself-incrimination clause (instructions to prevent) Why does it matter that you are prejudiced? Rule 14 (statutory issue)if prejudice can be prevented by severing charges, severance should be granted 5th amendmentlegally cant force D to testify against himself Severance wont solve problem if two crimes are a part of same transaction or occurrenceif you testify about one, opens up the door to be cross-examined about other charge as well Severance not allowed, wont save anything Trial judges have great latitude to decided on joiner and severance, very hard to win a motion to severe, even harder to win on appeal Suggestion that Rule 8(a) similar offense joinder should be done away with Which offenses/charges must be joined in a single charging instrument 2 topics: 1. Claim Preclusion (res adjudicata) US v. Foster o CPO bt wifecould not assault or threaten to assault her, she claims that he violated it and brings contept proceeding o Convicted on assault, acquitted on threat o Indictmentassault, assault with intent to kill, threat to injure o However, the remaining four counts of Foster's indictment are not barred under Blockburger. Foster's first prosecution for violating the CPO provision forbidding him to assault his wife does not bar his later prosecution under Count V, which charges assault with intent to kill. That offense requires proof of specific intent to kill, which the contempt offense did not. Similarly, the contempt crime required proof of knowledge of the CPO, which the later charge does not. The two crimes were different offenses under the Blockburger test Why prohibit trial? Why have DJ? o Separation of Powers problemlegislature states the max penalty, cant keep adding more time to sentence by repeadtly prosecuting o Repose (getting over it, mental health) 2. Issue Preclusion (collateral estoppel)

3/21/11 Discovery by Prosecution

Williams v. FL o Charged with Robbery o Prosecutor wanted to discover if defendant wanted to you an alibi as a defense o FL Rule of Crim Proc (Same as Fed R.Crim.Pro 2.1) that requires defendant to disclose address and names of witnesses to use for alibi defense o Alibi = claim (I was some place else) o Purpose of having info = know if you have a case and prevent defendant from fabricating an alibi (find out the truth) Accuracy Efficiency Fairness Imbalance of information in favor of defendantwhy fair? Adversarial systemobligation of gvt to do its own work o What about reciprocal change of disclosure? 5th amendmentdefendant cannot be compelled to be a witness against himself Forcing defendant to be a witness? No?BurtonWhopper and Bruton were co-conspirators and Whopper made a stm incriminating Bruton, PO wanted to testify about this at the joint trial I was in FL = stm by defendant (so does it force him to be a witness?problem with constitutional term witness) Even if yes, doesnt matter because it is just a question of timing and you were going to do it anyways 5th amendment concerns: o 1. I shouldnt have to provide prosecution any help at all period so the notice-alibi rule is invalid o 2. If all that I am doing is telling them something in advance of what I wouldve later, than its ok o 3. No violation because I am not a witness because I am not on the stand What should be done when someone violates the duty to turn over evidence? o Non-disclosure of inculpatory evidence by the Prosecution People v. Taylor

State failed before trial to turn over letter that defendant sold his friend a stolen pickup truck Veldt testified that Taylor sold him the pickup truck, Taylor testified that he didnt, just that told V where he could get a pickup truckletter shows that Taylor was lying or the letter could be wrong Lets evidence in Taylor v. Illinois Doesnt let evidence in Move to dismiss onIneffective assistance of counselif you win you get a new trial Must prove lawyer acted in constitutional deficient way and that this prejudiced your case US v. Resendiz-Ponce F = attempted to illegally re-enter US o allege specific overt act o C of A set aside convictionremanded for dismissal of Q = Is omission of an of a criminal offense from a fed harmless error? o defective I to violate criminal statute be punished as attempt unless also accompanied by signficiant conduct o Over act + I s SO-- need to specify a particular over act or any other component part of the offense requirements for : o 1. Contain of offense and fairly inform of against which he must defend o 2. Enables to plead an acquittal or conviction in bar of future prosecution for same offense

(READ PAGES 1102-9)

Sec 3. Amendments and Variances A. Permissible Scope of Amendments

1. R. 7(e)amend of pleadings Info can be amended @ any time before V or finding unless an additional or diff offense or substantive rt of is prejudiced o Must show amendment will catch by surprise and defend against charge

of surprise Different Offense = alleges offense under different statutory provision and it requires proof of diff under jeopardy std o Change factual ID of original 2. Many states amend are permitted as to form but substance 3. Fed ct and several state cts sharp distinction btw amend to v. info < latitude for amendments 4. Ex Parte Bain Habeas corpus challenge to a conviction based on amend Original false stm in bank report w/ I to deceive TC sustained demurrer CL-- = fatally defectivealleged as offense an alternate action that was a crime TC let gvt amend and strike bad provision H = amendment was impermissible Reas = party can only be tried upon as found by GJ and language in ing instrument 5. Stirone v. US H = gvt accomplish through a variance btw proof and what it achieve through amendment F = ed w/ extortion affecting IC through wrongful use of a threatened labor dispute o Obstructed IC, flow of sand shipments to Rs plant o Judge admitted evidence about interference w/ IC by preventing shipments that steel plant wouldve made it had it been built in time H = Fatal error to submit Q to jury o After returned, s be broadened through amend except by GJ

7. US v. Miller defrauded insurance co. by arranging burglary @ his business and lying to insurance as to value of loss o evidence established only lying TC grant gvt motion to amend to strike burglary part convicted o Challenged on ground that gvt proof fatally varied from SC rejected challenge Bain o Support (1) Conviction stand if based on offense that is different from alleged GJ o Can Support (2) Striking parts of that invalidate it Ct speculate if GJ meant for any remaining offense to stand alone, even if that offense clearly was included in original text Narrowing of = adding new = amendment that alters nature of offense ed (2) is rejectedoverruled here

will support each offense contained w/I it PC = variance addition new to GJ B. Scope of Permissible Variances 1. Variance = proof offered @ departs from allegations in or info 2. Berger std: Has there been such a variance as to affect substantive rts of accused? o Most states Variance requires reversal of conviction only when it deprives of a rt to fair notice or leaves him open to a risk of DJ 3. To apply Berger std: Does record suggest a possibility that may have been mislead or embarrassed in prep or presentation of his defense? Failure to object to waiver @ generally = waiver 4. DJ Prong of Berger std:

Extent to which variance alters scope of Can raise this is failed to object to variance @ 5. Form/Substance J Restricts permissible variances > Bain US v. Bagley Prosecutor didnt expose favorable evidence to defense It is unfair none of the concerns apply here (if prosecutor shares this type of info with defense)fairness, accuracy, efficiency Witnesses were being paid for their testimony--goes to issue of credibility How do you distiniguish between that something is a fair bargain and that you were compelled and did not really have a choice? Guilty Pleas Bordenkircher v. Hayes o H indicted for forged instrument in amount of $88.30, punishable by 2-10 years PR offered him 5 years if he took plea, if not PR would seek indictment under HCA which would give him life PR. Give plea o Weak Case o Slam dunk D pleading guilty o Guilt not clearly provable o Guilt clearly provable Effects of Guilty Plea Bargaining: o Impugn accuracy of CJS o Relationship btw defense attorney and prosecutor is effectedcan impact the fairness of the system depending on if the relationship is positive or negative 3.28.11

Could be a range of acceptable sentences Santobello v. NY o Prosecutor broke the agreement, recommended max sentence o What remedy should court provide for defnedant when prosecutor breaks agreement? o What constitutes breaking agreement? HereProsecutor promised to reccommed that defendant get a 5-year term but then didnt do it o D wanted to withdraw guilty plea o Judge said he wasnt persuaded by Prosecutorno one presented any evidence to the contrary Unrealized Expectations o Client misinterpretation or Clients lawyer misrepresented the sentence estimate

3.30.11 Anderson v. NC Why does defense counsel have any role in plea bargaining? o Critical phase o Dont have 6th amendment right to lawyer until there is a criminal proceeding What if after private negotiation with prosecutor, tentative deal was reached, Anderson spoke with lawyer and lawyer told him to take deal o Concerns: Was it the best deal possible? Even if it was, was it appropriate for lawyer not to participate? Ineffective assistance Right to counsel can only be waived by defendantirrelevant that counsel consented to meeting Tension btw Anderson and Bowman If you have a lawyer, what does a lawyer have to do to be competent (effective assistance of counsel)?

People v. Heirens Confessed to burglaries and murders after taking truth serum (it was illegally given so confessions might not be admissible) Newman v. US Ds indicted for housebreaking and petty larceny Offered PB to one of the defendants and not the other Options government can take: o 1. Do nothing (let Prosecutor make 2 deals and accept both pleas) o 2. Order prosecutor to give both defendants same deal o 3. Refuse to accept Anderson's guilty plea (Atica ct would take this option) Guilty plea or Nolo Contendere must be voluntary and knowingly and intelligent Section 4. Receiving Defendants plea; Plea withdrawn Henderson v. Morgan o Defendant was 19 years old and below average intelligenceindicted for 1st degree murder

PB for 2nd degree murder Attorney did not tell defendant of element of 2nd degree murder included intent to kill

4.4.11 C. Determining Guilty Plea is understandingly made o Morgan Tell them everything a reasonable person would want to know (case in supplement*) Might not plead G if he knew that intent was an element, may know that gvt wouldnt be able to prove it so he would be acquitted Justice White--dont want people to plead G to something they didnt do Justice Stevens--concern = wouldnt make deal if you knew what elements are, shoul dhave to know what elements are so you know what you are giving up o Nolo Contendere Pleads G but denies he committed the crime

Plea Withdrawal Detrimental reliance *Why do we like juries so much? *How should juries be structured so they can succeed in the goals we have in mind for them?

4.6.11 Trial by Jury Checks and Balances Parliament--legislator, Prosecutor, Judge Why look to history instead of function to draw line on which crimes are serious enough to warrant trial by jury? This line of SC cases are inconsistent with one another, sometimes they rely on history and sometimes they rely on function History v. language of constitution v. function we want jury to serve Waiver 4.11.11 Taylor v. Louisiana o Women were systematically excluded from jury so it was not an impartial jury o Complaining about composition of venire o 53% of population = woman, 0% of venire = women o Not a fair cross-section of population because woman had to opt-in o Held--violated 6th amendment because jury was not impartial as a result of Lousianas law o Difference between groups 4.18.11 Why defendant needs to be at trial o Help Attorney o Confrontationgenerate honesty o Jury to see D o Fairness o Constitution doesnt expressly say that defendant has right to be present at trial Due Process Clauseright to a fair trial o Constitutional right to be present at your trial What constitutes a trial? KY v. Stincer o Defendant excluded from in-chambers hearing to determine competency of kids to testify Illinois v. Allen o Why not just bind and gag him? Makes justice system look bad Makes defendant look dangerous and/or guilty If D leaves trial at lunchtrial still goes on, if it turns out that D did not return because he was mugged or something out of his control, the conviction can be thrown out and a new trial granted Defendants Trial Rights o To be present at trial o Cross-examine prosecution witnessesConfrontation Clause o Present Ds witnessesCompulsory Process o Right to testify o Right not to testify o Fair Trial Protection against improper statement to jury by judge or prosecutor o Right to consult counsel What potential problem does hearsay evidence pose to confrontation clause? o Not hearing from declarant, only person who heard declaration 4/25/11

ILL v. Somerville o Filing of --3/19/64 o Jury Empaneled/sworn11/1/65 o Motion for mis made, granted11/2/65 o Problem = if we allow motion, Pr is screwed, if deny it the gets screwed o What is the principle on which we should decide who to screw? o What if Pr asks for mis even though he knew his witnesses were not there? Dont let him do it because he wanted to see if he had a favorable jurymisconduct o What if Pr learns that 1 juror is unqualified to be a juror such as being convicted of a felony in another J? Juror screwed up Pr can offer to proceed with 11 jurors instead of 12 o Jury says deliberating case for 6 months and cant come up with a verdict- hung jury o Common Law governs exceptions to DJ At one pointwhen a case is done, lock jury up until reach a verdict o Text of DJ clause Cant be put in risk of life or limb twice PC Not put in risk yet b/c he could not be convicted no matter what (motion for mistrial made after jury empanelled/sworn) Risk in 2nd is same as 1st --never not at risk (risk continues) o Manifest Necessity Requirement Retrial is clearly necessary to the Ends of public justice Then retrial is not barred by DJ o right to open or public be restricted by showing that ends of justice requirement it o In principle, what difference does it make if asks for mis instead of Pr? AZ v. WA o If record has sufficient justification for mis ruling, bw subject to constitutional attack because find manifest necessity or give all reasons why No DJ bar to rePr, is responsible for loss of verdict (=) by this jury US v. Scott o 2 counts of narcotics distribution o Motion to dismiss for pre- delay (DP) filed in September before Ct granted it at close of all evidence Must show actual prejudice, so judge waited to see if was prejudiced by delay What if bribes the juror and this is found out after is acquitted, can he be retried? Yeswas not really at risk At end of Pr evidence, files motion to dmiss (JNOV), judge grants motion and dismisses case, gvt files appeal Allowed? Yes Consequences = affirming TC or reinstate jury

o o